Summary of law reform necessary to achieve full prohibition

Prohibition is still to be achieved in the home, schools, penal system and alternative care settings.

The legal defence for the use of corporal punishment by parents, teachers and others in article 226 of the Penal Code should be repealed so that there is clarity in the law that no kind or degree of corporal punishment can be considered “reasonable”. Explicit prohibition should be enacted of all corporal punishment by parents, teachers and other persons with authority over children.

Explicit prohibition should be enacted in relation to all education settings, public and private. In the penal system, judicial corporal punishment should be prohibited, including under traditional sentencing practices, and explicit prohibition should be enacted in relation to permitted disciplinary measures in all institutions accommodating children in conflict with the law. Explicit prohibition should also be enacted of all corporal punishment in all alternative care settings, including public and private day care, residential care, foster care, etc, together with repeal of article 226 of the Penal Code.

Current legality of corporal punishment

Home

Corporal punishment is lawful in the home. Article 226 of the Penal Code (1977) prohibits cruelty to children but also states: “Nothing in this section shall be construed as affecting the right of any parent, teacher, or other person, having the lawful control of a child or young person to administer reasonable punishment to him.” Children are protected from excessive force under article 228.

Schools

Corporal punishment is considered unlawful in schools since the provisions allowing it in the Education Ordinance (1977) were repealed by the 1997 Education (Amendment) (No 2) Act, but there is no explicit prohibition in law, and article 226 of the Penal Code (see above) applies.

Penal system

There is no provision for corporal punishment as a sentence for crime in the Penal Code or the Criminal Procedure Code. However, under article 226 of the Penal Code (see above) corporal punishment is permitted in traditional sentencing by order of Island Councils. Under examination by the Committee on the Rights of the Child in 2006, the Government stated that although corporal punishment was a sentencing option available to magistrates it was rarely used, and the Government was aware of the need to amend legislation (CRC/C/SR.1166, para. 46).

There is no prohibition of corporal punishment as a disciplinary measure in penal institutions. There are no regulations on appropriate treatment of detainees within prisons. Under article 39 of the Penal Code, offenders under the age of 16 who are considered to be “in need of care, protection or control” may be committed to the care of “any fit person whether a relative or not”, including “any local government council, religious institution, welfare association or other organisation able and willing to undertake the care, protection or control of persons under the age of 18 years”. Corporal punishment of children in these settings and in custody is permitted under the provisions for “reasonable punishment” in the Penal Code (see above).

Alternative care

There is no prohibition of corporal punishment in other institutions and article 226 of the Penal Code (see above) applies. There are no foster homes or day care centres.

Prevalence research

None identified.

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“The Committee is concerned that corporal punishment is not explicitly prohibited, is still widely practiced in the home, schools and is used as a disciplinary measure in alternative care settings. The Committee is also concerned that under article 226 of the Penal Code, “reasonable punishment” is permitted in penal institutions and by order of Island Councils.

“The Committee recommends that the State party, taking into account its General Comment No. 8 (2006) on the Right of the Child to Protection from Corporal Punishment and Other Cruel or Degrading Forms of Punishment:

1. amend all relevant legislation, in particular article 226 of the Penal Code to ensure that corporal punishment is explicitly prohibited in the family, schools, penal institutions, alternative care settings and as a traditional form of sentencing; and
2. take effective measures, including through public awareness campaigns involving children and traditional leaders, to promote positive, participatory and non-violent forms of discipline as an alternative to corporal punishment at all levels of society, and to effectively implement the law prohibiting corporal punishment.”

(29 September 2006, CRC/C/KIR/CO/1, Concluding observations on initial report, paras. 34 and 35)